The State Of Maharashtra, Through ... vs Shri. Arun Manikrao Kharwadkar
2017 Latest Caselaw 4464 Bom

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  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                CIVIL APPELLATE JURISDICTION

           CIVIL WRIT PETITION NO. 9587 OF 2016



1. The State of Maharashtra,
Through the Principal Secretary,
Agriculture, Animal Husbandry,
Dairy Development and Fisheries
Department, Mantralaya, Mumbai
400 032.

2. The Commissioner, Animal
Husbandry, Maharashtra State,
Central Building, Pune-1
3. The Accountant General (A & E),
Maharashtra State, 101, M.K. Road,
Mumbai-20.                          .....Petitioners
                                (Orig. Respondents)
     V/s.


Shri. Arun Manikrao Kharwadkar,
R/o-M-3/263, Shivgauri Co-op Hsg
Soc, Laxminagar, Parvati,
Pune-411 009.                                  .....Respondent
                                             (Orig. Applicant)



                         -------
Mr. Vishal Thadani, Advocate for the petitioners.

Mr. Sanjay Kshirsagar, Advocate for the respondent.




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                         CORAM :-     SMT. V.K. TAHILRAMANI, &

                                      SANDEEP K. SHINDE, JJ.

DATED :- 13TH JULY, 2017.

JUDGMENT :- (Per :- SANDEEP K. SHINDE, J) :

1. The State of Maharashtra has preferred this

petition against the judgment and order dated 21 st

November, 2015 passed by the Maharashtra

Administrative Tribunal (MAT), Mumbai in Original

Application No.876 of 2012 whereby :-

(i)departmental enquiry against the respondent

herein (original applicant) has been quashed

and set aside;

(ii)the State has been directed to proceed as if

no departmental enquiry was ever initiated

against the applicant; and held that the

applicant is entitled to full benefits in every

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respect and deductions, if any, made shall be

refunded.

2. The State has challenged the 'jurisdiction'

exercised by the Tribunal, in reviewing its administrative

action in the instant petition.

3. That before the dealing with the grounds

urged in the subject petition, we may place on record

relevant facts, and orders passed by the State, as well

as, by the judicial forums from time to time. The

petitioner was appointed as a Government Servant on

13th November, 1970 in Animal Husbandry Department.

On 26th March, 1997 chargesheet was laid against him

for alleged irregularities committed by him during 1 st

June, 1989 to 8th July, 1991, when he was posted as Live

Stock Development Officer (Technical Assistant). The

charges were :

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(i) the petitioner prepared the proposal for

purchase of medicines without reviewing the

stock of balance medicines for every year and

mislead the superior authorities and thereby

violated Rule 3 of the Maharashtra Civil Services

(Conduct) Rules, 1979.

(ii) the petitioner has deliberately submitted a

wrong proposal to purchase the medicines in

violation of the Rules.

(iii) caused loss to the Zilla Parishad by

purchasing medicines.

(iv) proposal was submitted before the budget

of the Zilla Parishad was published and thereby

violated the budgetary, as well as, financial

norms.

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(v) he submitted proposal for purchase of

medicines though there was no technical

sanction from the Competent Authority.

4. It appears, though the Enquiry Officer was

appointed in August, 1997 enquiry actually progressed

from May, 2001 and the Enquiry Officer submitted his

report on 4th January, 2002. On 24th October, 2003

show cause notice, of compulsory retirement was

issued to original applicant ("applicant" for short) in

public interest under Rule 10(4) of the Maharashtra

Civil Services (Pension) Rules, 1982. This notice was

received by the applicant on 21st November, 2003.

Thereafter, he made a representation against the said

notice on 29th November, 2003. He had also challenged

the notice in O.A. No.88 of 2004. The O.A. was disposed

off on 22nd January, 2004 whereby the Competent

Authority was directed to pass the order on the

representation expeditiously and appellant services

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were directed to be continued till that time.

. It is the applicants' case, that alongwith him,

his superior officers, Dr. Dharmadhikari, District

Animal Husbandry Officer and Dr. S. Karlekar,

District Animal Husbandry Officer were

chargesheeted on the alleged irregularities

committed by them while procuring medicines for

Zilla Parishad for the same period for which he

has been chargesheeted. Applicant attained the

age of super-annuation on 30th June, 2005, He was

served with a show-cause notice dated 26 th

October, 2006 for punishment of 25% reduction in

the pension with permanent effect. Applicant

responded the same vide representation dated 2 nd

January, 2007. It is his case that, representation

was not taken into consideration and the State

issued order dated 3rd December, 2008 vide which

the petitioner was saddled with the punishment of

25% reduction in the pension with permanent

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effect. It appears, though the order was passed

on 3rd December, 2008, it was served to the

applicant on 20th September, 2010 and that too

upon lot of efforts by him.

5. The order dated 3rd December, 2008 i.e. 25%

reduction in the pension with permanent effect was

challenged by the petitioner in August, 2011 in O.A. No.

740 of 2011. This O.A. was disposed off vide order

dated 14th September, 2011 by passing the following

order :-

"Having regard to the facts and circumstances of the case, we direct the Appellate Authority to decide the said Appeal, if any filed within two weeks from today, within three months thereafter. Needless to say, opportunity of personal hearing be given to the applicant before deciding the same. Original Appliation stands disposed off."

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6. That, in terms of the order dated 14 th

September, 2011 the applicant preferred an Appeal on

26th September, 2011 and referred to order passed by

the Tribunal. That by letter dated 24 th February, 2012

the applicant was informed that, Appeal was beyond

the period of specified limitation and was called upon to

give the reasons for the delay. Applicant supplied the

reasons, and prayed for condonation of delay on the

ground that the order dated 3rd December, 2009

(reduction in pension with permanent effect) was

received by him on 20th September, 2010 and therefore

could not prefer the Appeal within 45 days. It appears,

the Appellate Authority did not decide the Appeal within

two months as directed by the Tribunal and only after

reminder by the applicant, Appeal was rejected by the

Governor by order dated 20th June, 2012.

7. Being aggrieved by the order dated 3rd

December, 2008 i.e. 25% reduction in pension with

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permanent effect and order dated 20th June, 2012

passed by the Appellate Authority, applicant

approached the Maharashtra Administrative Tribunal by

filing O.A. No. 876 of 2012 wherein he prayed for :-

(i)that punishment order dated 3rd December, 2008 and the order dated 20th June, 2012 may kindly be quashed and set aside and direct the respondent, State to release all the payments which have been deducted from the pension of the petitioner, as well as, the arrears of pension as per Sixth Pay and pay all the consequential benefits such as interest on pensionary benefits from the date of retirement within such time as the Court may deem fit.

8. The claim of the applicant was granted by the

Learned Member of the MAT vide order dated 21 st

November, 2015 as stated hereinabove. The State

being aggrieved by the said judgment and order

preferred this petition under Articles 226 and 227 of the

Constitution of India.

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9. That before addressing the issue/grounds

raised by the State as about the jurisdiction of Tribunal

to review the administrative order and scope of judicial

review thereto, it may be stated that the applicant-

respondent herein and his two superior officers Dr.

Dharmadhikari and Dr. Karlekar were prosecuted by the

State for the alleged misappropriation/irregularities

committed by them in Regular Criminal Case No. 8019

of 1987. The record shows that, the applicant had

applied for discharge from the case contending that,

the material collected against him does not give rise to

any suspicion for having committed the alleged

offence. The Chief Judicial Magistrate, Aurangabad was

pleased to discharge him from the case on merits. The

Criminal Revision Application No. 170 of 2005 filed by

the State was rejected vide order dated 13 th February,

2002.

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10. The principle question in the case in hand is,

as to whether the Tribunal was justified in reviewing the

administrative orders i.e. findings in enquiry and

penalty of 25% reduction in the pension of the applicant

with a permanent effect. In the case in hand, the

findings recorded by the Enquiry Officer and the

decision of the disciplinary authority has been set aside

by the MAT. It is correct that, the jurisdiction of the MAT

is not an appellate jurisdiction. It is also a settled law

that, a possibility of mere existence of another point of

view on the same set of facts, will not by itself be a

ground to intervene or interfere with the order of

administrative in nature, like the one in hand. It is also

settled law that, strict codified procedural law is not

applicable in case of departmental enquiries and it

would be governed in accordance with the

preponderance of probability and not proof beyond

reasonable doubt. It is further settled, that the judicial

forum which is scrutinising the material to make sure

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that there was some incriminating material to justify

the conclusion and therefore the judicial forum would

not just for the asking rush in and interfere with the

conclusions drawn by the authorities below. However,

there are still principles of justice, fair play and good

conscious that must be found in the impugned actions.

Therefore, remaining within the constraints of

jurisdiction, judicial forum still has to bear in mind that

at the end of the day, justice must not be made to

suffer.

11. Heard Learned AGP for the State and Learned

Counsel for the respondent-original applicant. The

Learned AGP would urge that, the Tribunal erred in

interfering with the administrative order without there

being material or compelling reasons and on that

ground alone, the order impugned is required to be

quashed and set aside. The Learned Counsel for the

original applicant, respondent herein, however,

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supported the order of the Tribunal.

12. We have perused the entire material placed

on record. Before answering the issue raised by the

State, it is necessary, to find out and ascertain whether

there was convincing material on record to suggest that

the respondent, applicant was not guilty of charge

made against him. Equally, it is necessary to find out,

as to whether the disciplinary authority has appreciated

such convincing material, if any, and it is also necessary

to find out if such material was not considered by the

disciplinary authority in the process of concluding the

charges against the petitioner, then, whether such

omission and/or lapses would be a good ground to

upset the findings recorded by the Enquiry Officer and

whether the Tribunal was justified in

reversing/interfering in administrative orders.

13. Before addressing this issue, it may be stated

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that the Tribunal has relied on the following material of

which notice was not taken by the authorities below nor

such material was referred to while concluding the

charges against the applicant in the departmental

enquiry. Such material is,

(i) the affidavits of Dr. M.B. Dharmadhikari and Dr.

D.S. Karlekar, co-delinquent and eventually the

officers superior to the petitioner, wherein they

stated that, they had given instructions to the

petitioner to prepare the proposals as per Rule

(3) of the Maharashtra Civil Services (Conduct)

Rules, 1979,

(ii) a letter dated 5th February, 1991 as per which

the District Animal Husbandry Officer is totally

responsible for violation of the rules/lapses etc, in

purchase of medicines,

(iii) the enquiry report against Dr. Dharmadhikari

wherein finding is recorded that Dr.

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Dharmadhikari was 100% responsible for the

purchases and lapses during that period.

(iv) order of the Chief Judicial Magistrate,

Aurangabad in R.C.C. No.80119 of 1997 whereby

the petitioner was exonerated/discharged from

the said criminal case.

(v) judgment and order in Criminal Revision

Application No. 170 of 2005 filed by the State

against the order of the Chief Judicial Magistrate

and the findings recorded therein, particularly

paras-10 and 11 read as under :-

"10. The aforesaid record and statements show that the witnesses have not contended that the record was dishonestly prepared by Dr. Kharwadkar. On the contrary, they show that some medicines were received in excess than the quantity shown in the register of Zilla Parishad. The actual value of medicines which

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were not supplied by Dr. Kharwadkar is not given in sanction order and the total value of the medicines distributed and not found in the centers is given in the sanction order. Thus, as against each officer very small amount is shown and in view of the aforesaid irregularities appearing in the registers, even at this stage it cannot be believed that there was dishonest intention or misappropriation of some medicines mentioned in the sanction order.

11. It is unfortunate that when there are specific allegations against higher authority about misuse of fund of Zilla Parishad and of irregularities committed, the attention was diverted to others and allegations are made against the Doctors that some medicines were not reached to the centers. The statements show that there was no alternative before the officers entrusted with disbursement of the medicines received to distribute the medicines at the centers even when the centers had not asked for the same. Easy inference could not have been drawn that as per the directions of the superior officers it was done. Nothing can

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be achieved by asking the accused to face the trial on the basis of aforesaid material. So, I hold that that CJM has not committed any error in discharging the accused and by answering point in the affirmative, I pass the following order."

14. We have perused the aforesaid material

including the orders passed in the judicial proceedings.

No doubt that, merely because the petitioner was

discharged in the criminal proceedings, may be under

the same set of facts, that by itself will not exonerate

him or would dis-entitle his employer to proceed in the

departmental enquiry against him. In the case in hand,

besides the judicial orders, there were affidavits on

record filed by the co-delinquents who were eventually

the officers superior to the petitioner in hierarchy, had

stated on oath that the petitioner had prepared the

proposal at their instance. Yet, there was another piece

of material in the form of the finding of the enquiry

officer as against Dr. Dharmadhikari wherein he was

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held responsible for the purchases of the medicines.

This finding was not disturbed by the Tribunal in the

proceedings taken up by Dr. Dharmadhikari in O.A.

No.819 of 2014 preferred by him against enquiry report

and consequential orders. Thus, the cumulative effect

of the affidavits and the findings of the Enquiry Officer

(against Dr. Dabohalkar in his enquiry) coupled with the

findings/observations in the criminal revision

proceedings were totally ignored by the disciplinary

authority as it appears from the record and the order of

the Tribunal.

. At this juncture, the Learned Counsel for

the petitioners has brought to our notice the

finding of the enquiry officer wherein, he stated

that, all the charges were "more or less

proved". The exact words are :-

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15. We have perused the enquiry report, as well

as, the order passed by the disciplinary authority. The

enquiry officer has not held the charges against the

applicant as "proved". From the observations

reproduced hereinabove, it can be said with certainty

that, the enquiry officer himself was not sure as about

the charges whether stands proved or not. The

disciplinary authority had not at all looked into this

aspect and proceeded to hold the charges were proved.

16. That looking into the facts of the case and the

reasons given by the Tribunal while allowing the said

O.A. of the respondent, (original applicant) we do not

find any irregularity and/or error being committed by

the Tribunal in exercise of the jurisdiction while setting

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aside the findings recorded by the Disciplinary

Authority. The Tribunal in its reasoned order has dealt

with the aspects and the material which was available

before the authorities below for consideration before

concluding the charges against the petitioner. Besides,

the finding recorded in the judicial proceedings and in

particular, findings at paras-10 and 11 in the criminal

revision proceedings has attained the finality. That for

the aforesaid reasons, we hold that the Tribunal has

neither substituted its own view over the views of the

Appellate Authority nor committed error in entering into

the merits of the respondent's appeal.

17. That before concluding this judgment, it may

be stated that the Tribunal vide order dated 14 th

September, 2011 directed the Appellate Authority to

decide the appeal within three months. The record

shows that, the petitioner's appeal to the Appellate

Authority was not decided and as such extension was

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sought by the Government on the ground that original

record pertaining to the order dated 31st December,

2008 was not available. The Tribunal therefore

extended the period to decide the Appeal. However, it

appears that, the petitioner was informed vide letter

dated 24th February, 2012 that his Appeal was not filed

within 45 days. The petitioner, thereafter, vide letter

dated 29th March, 2012 prayed for condonation of delay

on the ground that the order dated 3 rd December, 2008

(reduction in pension with permanent effect) was

received by him on 20th September, 2010 and therefore

he could not have preferred the appeal within 45 days

from the order dated 3rd December, 2008. Admittedly,

the petitioner's appeal was not heard either by granting

him opportunity of hearing nor on merits but it got

dismissed on the ground that the Appeal was preferred

beyond limitation of 45 days and petitioner has not

pointed out the authenticate reasons for the same. It

was a strange approach of the Appellate Authority for a

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simple reason that, order imposing 25% slash in the

pension though passed on 3rd December, 2008, it was

served upon the petitioner by the respondent, State on

20th September, 2010. On this set of admitted facts,

the order passed by the Appellate Authority cannot

sustain. That even otherwise, we have concluded that

the order of the MAT interfering with the finding

recorded by the disciplinary authority cannot be faulted

with. That, after taking a survey of events, as narrated

hereinabove, it is evident that the departmental enquiry

was conducted in relation to the irregularities allegedly

committed during the year 1989 to 1991. The applicant

herein, has retired in June, 2005. In December, 2008

punishment was inflicted, however, copy thereof was

supplied to the applicant in the year 2002. Taking into

consideration, the facts of the case and the manner in

which the enquiry was held and proceedings adopted

by the State against the applicant, we do not see any

reason to remand the Appeal to the Appellate Authority

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for fresh hearing as contended and urged by the State

Counsel. That for the aforesaid reasons, the writ

petition is dismissed with no order as to costs. Rule is

discharged.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)